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l ~ t p u b i i c o tf e ~ b i l t p p t n e s~ H p r r r n e QtouttJ nguio Q itp

SECOND DIVISION

FRA NKLlN ALEJANDROPetitioner.

-versus -

OFFICE OF THE OMBUDSMANFACT-FINDING ANDINTELLIGENCE BUREA1Jrepresented by Atty. Maria OliviaElcnu A. Ro:xas

Respondent.

G.R. No. 173121

Present:CARPIO,. .Chailperson,

VELASCO, JR.,*BI

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Decision G.R. No. 1731212

TheFactualAntecedentsOn May 4, 2000, the Head of the Non-Revenue Water Reduction

Department of the Manila Water Services, Inc. (MWSI) received a report

from an Inspectorate and Special Projects team that the Mico Car Wash

(MICO), owned by Alfredo Rap Alejandro, has been illegally opening an

MWSI fire hydrant and using it to operate its car-wash business in Binondo,

Manila.5

On May 10, 2000, the MWSI, in coordination with the Philippine

National Police Criminal Investigation and Detection Group (PNP-CIDG),

conducted an anti-water pilferage operation against MICO.6

During the anti-water pilferage operation, the PNP-CIDG discovered

that MICOs car-wash boys indeed had been illegally getting water from an

MWSI fire hydrant. The PNP-CIDG arrested the car-wash boys and

confiscated the containers used in getting water. At this point, the petitioner,

Alfredos father and the Barangay Chairman or punong barangay of

Barangay 293, Zone 28, Binondo, Manila, interfered with the PNP-CIDGs

operation by ordering several men to unload the confiscated containers. This

intervention caused further commotion and created an opportunity for the

apprehended car-wash boys to escape.7

On August 5, 2003, the respondent Office of the Ombudsman Fact-

Finding and Intelligence Bureau, after conducting its initial investigation,

filed with the Office of the Overall Deputy Ombudsman an administrative

complaint against the petitioner for his blatant refusal to recognize a joint

legitimate police activity, and for his unwarranted intervention.8

In its decision9 dated August 20, 2004, the Office of the Deputy

Ombudsman found the petitioner guilty of grave misconduct and ordered his

dismissal from the service. The Deputy Ombudsman ruled that the petitioner

cannot overextend his authority as Barangay Chairman and induce other

people to disrespect proper authorities. The Deputy Ombudsman also added

that the petitioner had tolerated the illegal acts of MICOs car-wash boys.10

The petitioner filed a motion for reconsideration which the Office of the

Deputy Ombudsman denied in its order11

of November 2, 2004.

5 Id. at 98.6 Id. at 169.7 Ibid.8 Id. at 42.9 Supra note 4.10 Id. at 106.11

Rollo, pp. 114-117.

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The petitioner appealed to the CA viaa petition for review under Rule43 of the Rules of Court. In its decision

12dated February 21, 2006, the CA

dismissed the petition for premature filing. The CA ruled that the petitioner

failed to exhaust proper administrative remedies because he did not appeal

the Deputy Ombudsmans decision to the Ombudsman.

The petitioner moved for the reconsideration of the CA ruling. On

June 15, 2006, the CA denied the motion.13

The Petition

The petitioner posits that the CA erred in dismissing his petition

outright without considering Rule 43 of the Rules of Court and

Administrative Order No. 07 (otherwise known as the Rules of Procedure of

the Office of the Ombudsman),14

on the belief that the filing of a motion for

reconsideration of the decision of the Office of the Overall Deputy

Ombudsman can already be considered as an exhaustion of administrative

remedies. The petitioner further argues that the Office of the Ombudsman

has no jurisdiction to order his dismissal from the service since under

Republic Act No. (RA) 7160 (otherwise known as the Local Government

Code of 1991), an elective local official may be removed from office only by

the order of a proper court. Finally, he posits that the penalty of dismissal

from the service is not warranted under the available facts.

The Office of the Deputy Ombudsman, through the Office of the

Solicitor General, pointed out in its Comment15 that the petitioner failed to

exhaust administrative remedies since he did not appeal the decision of the

Deputy Ombudsman to the Ombudsman. The Office of the Deputy

Ombudsman maintained that under RA 677016

(The Ombudsman Act of

1989), the Office of the Ombudsman has disciplinary authority over all

elective and appointive officials. It also asserted that sufficient evidence

exists to justify the petitioners dismissal from the service.

As framed by the parties, the case poses the following issues:

I.

12 Supranote 2.13 Supranote 3.14 Dated October 15, 1991.15 Rollo, pp. 220-246.16 An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman,

and for Other Purposes.

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WHETHER THE PRINCIPLE OF EXHAUSTION OFADMINISTRATIVE REMEDIES REQUIRES A REQUEST

FOR RECONSIDERATION FROM THE OFFICE OF THE

DEPUTY OMBUDSMAN TO THE OMBUDSMAN FOR

THE PURPOSE OF A RULE 43 REVIEW.

II.

WHETHER THE OFFICE OF THE OMBUDSMAN HASJURISDICTION OVER ELECTIVE OFFICIALS AND HAS

THE POWER TO ORDER THEIR DISMISSAL FROM THE

SERVICE.

III.

WHETHER PETITIONERS ACT CONSTITUTES GRAVE

MISCONDUCT TO WARRANT HIS DISMISSAL.

The Courts Ruling

We deny the petition for lack of merit.

Preliminary Issues

The CA committed no reversible error in affirming the findings and

conclusions of the Deputy Ombudsman.

No further need exists to exhaust

administrative remedies from the

decision of the Deputy Ombudsman

because he was acting in behalf of

the Ombudsman

We disagree with the CAs application of the doctrine of exhaustion

of administrative remedies which states that when there is a procedure for

administrative review, x x x appeal, or reconsideration, the courts x x x will

not entertain a case unless the available administrative remedies have been

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resorted to and the appropriate authorities have been given an opportunity to

act and correct the errors committed in the administrative forum.17

Section 7, Rule III of Administrative Order No. 07, dated April 10,

1990, provides that:

Section 7. FINALITY OF DECISION. Where the respondent is

absolved of the charge and in case of conviction where the penalty

imposed is public censure or reprimand, suspension of not more than one

(1) month, or a fine equivalent to one (1) month salary, the decision shall

be final and unappealable. In all other cases, the decision shall becomefinal after the expiration of ten (10) days from receipt thereof by the

respondent, unless a motion for reconsideration or petition for

certiorari shall have been filed by him as prescribed in Section 27 of

RA 6770. [italics supplied; emphasis and underscore ours]

Administrative Order No. 07 did not provide for another appeal from

the decision of the Deputy Ombudsman to the Ombudsman. It simply

requires that amotion for reconsideration or a petition for certiorari may befiled in all other caseswhere the penalty imposed is not one involving public

censure or reprimand, suspension of not more than one (1) month, or a fineequivalent to one (1) month salary. This post-judgment remedy is merely an

opportunity for the Office of the Deputy Ombudsman, or the Office of the

Ombudsman, to correct itself in certain cases. To our mind, the petitioner

has fully exhausted all administrative remedies when he filed his motion for

reconsideration on the decision of the Deputy Ombudsman. There is no

further need to review the case at the administrative level since the Deputy

Ombudsman has already acted on the case and he was acting for and in

behalf of the Office of the Ombudsman.

The Ombudsman has concurrent

jurisdiction over administrative cases

which are within the jurisdiction of

the regular courts or administrative

agencies

The Office of the Ombudsman was created by no less than the

Constitution.18

It is tasked to exercise disciplinary authority overallelective

and appointive officials, save only for impeachable officers. While Section21 of The Ombudsman Act

19and the Local Government Code both provide

17 Hon. Carale v. Hon. Abarintos, 336 Phil. 126, 135-136 (1997).18 CONSTITUTION, Article XI, Section 5.19 Section 21. Official Subject to Disciplinary Authority; Exceptions. The Office of the

Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government

and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,

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for the procedure to discipline elective officials, the seeming conflicts

between the two laws have been resolved in cases decided by this Court.20

In Hagad v. Gozo-Dadole,21

we pointed out that there is nothing in

the Local Government Code to indicate that it has repealed, whether

expressly or impliedly, the pertinent provisions of the Ombudsman Act. The

two statutes on the specific matter in question are not so inconsistent x x x as

to compel us to only uphold one and strike down the other. The two laws

may be reconciled by understanding theprimaryjurisdiction andconcurrent

jurisdiction of the Office of the Ombudsman.

The Ombudsman has primary jurisdiction to investigate any act or

omission of a public officer or employee who is under the jurisdiction of the

Sandiganbayan. RA 6770 provides:

Section 15. Powers, Functions and Duties. The Office of the

Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee,

office or agency, when such act or omission appears to be illegal,

unjust, improper or inefficient. It has primary jurisdiction over

cases cognizable by the Sandiganbayan and, in the exercise of

this primary jurisdiction, it may take over, at any stage, from any

investigatory agency of Government, the investigation of such

cases[.] [italics supplied; emphasis and underscore ours]

The Sandiganbayans jurisdiction extends only to public officials

occupying positions corresponding to salary grade 27 and higher.22

Consequently, as we held in Office of the Ombudsman v. Rodriguez,

23

anyact or omission of a public officer or employee occupying a salary grade

lower than 27 is within the concurrentjurisdiction of the Ombudsman and

of the regular courts or other investigative agencies.24

In administrative cases involving theconcurrentjurisdiction of two or

more disciplining authorities, the body where the complaint is filed first, and

which opts to take cognizance of the case, acquires jurisdiction to the

exclusion of other tribunals exercisingconcurrentjurisdiction.25

In this case,

government-owned or controlled corporations and their subsidiaries, except over officials who may be

removed only by impeachment or over Members of Congress, and the Judiciary.20 Office of the Ombudsman v. Rodriguez, G.R. No. 172700, July 23, 2010, 625 SCRA 299.21 G.R. No. 108072, December 12, 1995, 251 SCRA 242, 251.22 RA 8249, An Act Further Defining the Jurisdiction of the Sandiganbayan.23 Supra note 20.24 Uy v. Sandiganbayan, 407 Phil. 154 (2001).25

Civil Service Commission v. Alfonso, G.R. No. 179452, June 11, 2009, 589 SCRA 88.

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the petitioner is a Barangay Chairman, occupying a position corresponding

to salary grade 14.26 Under RA 7160, the sangguniang panlungsod orsangguniang bayan has disciplinary authority over any elective barangay

official, as follows:

Section 61. Form and Filing of Administrative Complaints. A

verified complaint against any erring local elective official shall be

prepared as follows:

x x x x

(c) A complaint against any elective barangay official shall be filed

before the sangguniang panlungsod or sangguniang bayan concerned

whose decision shall be final and executory. [italics supplied]

Since the complaint against the petitioner was initially filedwith the

Office of the Ombudsman, the Ombudsman's exercise of jurisdiction is to

the exclusion of the sangguniang bayan whose exercise of jurisdiction is

concurrent.

The Ombudsman has the power to

impose administrative sanctions

Section 15 of RA 677027

reveals the manifest intent of the

lawmakers to give the Office of the Ombudsman fulladministrative

26 RA 6758, Compensation and Position Classification Act of 1989.27 Section 15. Powers, Functions and Duties. The Office of the Ombudsman shall have thefollowing powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission ofany public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,

improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the

exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of

Government, the investigation of such cases;

(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or

of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled

corporations with original charter, to perform and expedite any act or duty required by law, or to stop,

prevent, and correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public officer or employee at

fault or who neglect[s] to perform an act or discharge a duty required by law, and recommend his removal,

suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its

disciplinary authority as provided in Section 21 of this Act: provided, that the refusal by any officer

without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure,or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty

required by law shall be a ground for disciplinary action against said officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may

provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions

entered into by his office involving the disbursement or use of public funds or properties, and report any

irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the discharge of

its responsibilities, and to examine, if necessary, pertinent records and documents;

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disciplinary authority. This provision covers the entire range of

administrative activities attendant to administrative adjudication, including,among others, the authority to receive complaints, conduct investigations,

hold hearings in accordance with its rules of procedure, summon witnesses

and require the production of documents, place under preventive suspension

public officers and employees pending an investigation, determine the

appropriate penalty imposable on erring public officers or employees as

warranted by the evidence, and, necessarily, impose the corresponding

penalty.28

These powers unmistakably grant the Office of the Ombudsman thepower to directly impose administrative sanctions; its power is not merely

recommendatory. We held in Office of the Ombudsman v. Apolonio29

that:

It is likewise apparent that under RA 6770, the lawmakers intended

to provide the Office of the Ombudsman with sufficient muscle to ensure

that it can effectively carry out its mandate as protector of the people

against inept and corrupt government officers and employees. The Office

was granted the power to punish for contempt in accordance with the

Rules of Court. It was given disciplinary authority overallelective and

appointive officials of the government and its subdivisions,instrumentalities and agencies (with the exception only of impeachable

officers, members of Congress and the Judiciary). Also, it can

preventively suspend any officer under its authority pending an

investigation when the case so warrants.30

(italics supplied; emphasis and

underscore ours)

Substantive Issue

The petitioner is liable for grave

misconduct

At the outset, we point out that the maintenance of peace and order is

a function of both the police and the Barangay Chairman, but crime

prevention is largely a police matter.

(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2),

(3) and (4) hereof, when circumstances so warrant and with due prudence: provided, that the Ombudsman

under its rules and regulations may determine what cases may not be made public: provided, further, thatany publicity issued by the Ombudsman shall be balanced, fair and true;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the

Government, and make recommendations for their elimination and the observance of high standards of

ethics and efficiency[.] [italics supplied28 Cabalit v. Commission on Audit-Region VII, G.R. Nos. 180236, 180341 and 180342, January 17,

2012, 633 SCRA 133.29 G.R. No. 165132, March 7, 2012, 667 SCRA 583.30

Id. at 596.

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At the time when the police officers were hauling the confiscated

equipment, they were creating a commotion. As Barangay Chairman, thepetitioner was clearly in the performance of his official duty when he

interfered. Under Section 389(b)(3) of RA 7160, the law provides that a

punong barangay must [m]aintain public order in the barangay and, in

pursuance thereof, assist the city or municipal mayor and the sanggunian

members in the performance of their duties and functions[.] The PNP-

CIDGs anti-water pilferage operation against the car-wash boys was

affecting the peace and order of the community and he was duty-bound to

investigate and try to maintain public order.31

After the petitioner introduced himself and inquired about the

operation, the police officers immediately showed their identifications and

explained to him that they were conducting an anti-water pilferage

operation. However, instead of assisting the PNP-CIDG, he actually ordered

several bystanders to defy the PNP-CIDGs whole operation. The

petitioners act stirred further commotion that unfortunately led to the escape

of the apprehended car-wash boys.32

The petitioner, as Barangay Chairman, is tasked to enforce all lawsand ordinances which are applicable within the barangay, in the same

manner that the police is bound to maintain peace and order within the

community. While the petitioner has general charge of the affairs in the

barangay, the maintenance of peace and order is largely a police matter,

with police authority being predominant33

especially when the police has

began to act on an enforcement matter.34

The maintenance of peace and

order in the community is a general function undertaken by the punong

barangay. It is a task expressly conferred to the punong barangay under

Section 389(b)(3) of RA 7160.

35

On the other hand, the maintenance ofpeace and order carries both general and specific functions on the part of the

police. Section 24 of RA 6975 (otherwise known as the Department of the

Interior and Local Government Act of 1990),36

as amended,37

enumerates

the powers and functions of the police. In addition to the maintenance of

peace and order, the police has the authority to [i]nvestigate and prevent

31 Rollo,p. 15.32 Id. at 99.33

On the basis and predominance of the polices authority.

34 RA 7160, Section 389(b)(1).35 (3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal

mayor and the sanggunian members in the performance of their duties and functions[.]36 Section 1.37 RA 8551 or the Philippine National Police Reform and Reorganization Act of 1998 and

Republic Act No. 9708 or An Act Extending for Five (5) Years the Reglementary Period for Complying

with the Minimum Educational Qualification for Appointment to the Philippine National Police (PNP) and

Adjusting the Promotion System Thereof, Amending for the Purpose Pertinent Provisions of Republic Act

No. 6975 and Republic Act No. 8551 and for Other Purposes.

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crimes, effect the arrest of criminal offenders, bring offenders to justice and

assist in their prosecution[,] and are charged with the enforcement of lawsand ordinances relative to the protection of lives and properties.

38

Examined side by side, police authority is superior to thepunong barangays

authority in a situation where the maintenance of peace and order has

metamorphosed into crime prevention and the arrest of criminal offenders.

In this case, a criminal act was actually taking place and the situation

was already beyond the general maintenance of peace and order. The police

was, at that point, under the obligation to prevent the commission of a crime

and to effect the arrest, as it actually did, of criminal offenders.

From another perspective, the peace and order function of the punong

barangay must also be related to his function of assisting local executive

officials (i.e., the city mayor), under Section 389(b), Chapter III of the Local

Government Code.39

Local executive officials have the power to employ and

deploy police for the maintenance of peace and order, the prevention of

crimes and the arrest of criminal offenders.40

Accordingly, in the

maintenance of peace and order, the petitioner is bound, at the very least, to

respect the PNP-CIDGs authority even if he is not in the direct position togive aid. By interfering with a legitimate police operation, he effectively

interfered with this hierarchy of authority. Thus, we are left with no other

38 RA 6975, Section 24(a), (b) and (c), as amended.39 (b) For efficient, effective and economical governance, the purpose of which is the general

welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall:

(1) Enforce all laws and ordinances which are applicable within the barangay;

(2) Negotiate, enter into, and sign contracts for and in behalf of the barangay, upon authorization

of the sangguniang barangay;

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal

mayor and the sanggunian members in the performance of their duties and functions[.]40 Section 62, Title VIII of RA 8551 (Participation of Local Government Executives in the

Administration of the PNP)provides:

It shall also include the power to direct the employment and deployment of units

or elements of the PNP, through the station commander, to ensure public safety andeffective maintenance of peace and order within the locality. For this purpose, the terms

employment and deployment shall mean as follows:

Employment refers to the utilization of units or elements of the PNP for

purposes of protection of lives and properties, enforcement of laws, maintenance of

peace and order, prevention of crimes, arrest of criminal offenders and bringing the

offenders to justice, and ensuring public safety, particularly in the suppression of

disorders, riots, lawlessness, violence, rebellious and seditious conspiracy, insurgency,

subversion or other related activities.

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1 1 G.R. No. 173121

conclusion other than to ruie that Alejandro is liable for misconduct in theperformance ofhis duties.

Nfisconduct is considered grave if accompanied by corruption, a clearintent to violate the law, or a f1agrant disregard of established rules, whichmust all be supported by substantial evidence. 41 If the misconduct does notinvolve any of the additional elements to qualify the misconduct as grave,the person charged may only be held liable for simple misconduct. "Gravemisconduct necessnrily includes the lesser offense of simple misconduct.''42

Sufficient records exist to justifY the imposition of a higher penaltyagainst the petitioner. His open interference in a legitimate police ; : ~ c t i v i t y .and defiance of the police's authority only show his clear i1itent to violatethe lmv; in fact, he reneged on his first obligation as the grassroot otlicialtasked at the first level with the enforcement of the law. The photographs,taken together with the investigJtion report of the Police Superintendent andthe testimonies of the witnesses, even lead to conclusions beyondinterference and defiance; the petitioner himself could have been involvedin corrupt activities, although we cannot make this conclusive tinding at thispoint.43 \Vc make this observation though as his son owns TvliCO whosec::lrwash boys were engaged in water pilferage. Vlhat we can conclusivelyconfirm is that the petitioner violated the law by directly interfering with alegitimate police activity \vbere his own son appeared to be involved. Thisact quali f1es the misconduct as grave. Section 52 A) 3), Rule JV nf theRevised Uniform Rules on Administrative Cases in the Civil Serviceprovides thnt the penalty for grave misconduct is dismissa I from the service.

\VHEREFORE, in view of the foregoing, we hereby DENY thepetition for lack of merit, and AFFIRI\1 the decision of the Court ofAppeals in CA-G.R. SP No. 88544.

SO ORDERED.

hi n Wh .A R ~ ~ t f ~ ~ J b ~Associate Justice41 imperial Jr. v. Ciovernmenl Service Insurance System G.R. No. 191224, October 4, 20 II, 658SCRA 497, 506, citing Vertudes v. Buena/lor G.R. No. 153 66, December 16. 2005.478 SCRA 210. 233.42 Santos v. Ra:; alan CI.R. No. 15 i7,19. Februa;-:-r S, 20 )7. 515 SCRA rn 104.u Rollo. pp. 4 J ~ 2 .

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Decision C:U\. No. 173121

\VE CONCUR:

i-\ssociate JusticeChairperson

.J. VELASCO, J 1 ~ .Ass ci

gr 173121

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